Nuclear Weapons

What After the Adoption of the UN Nuclear Weapons Ban Treaty

By Susi Snyder

Susi Snyder is the Nuclear Disarmament Programme Manager for PAX in the Netherlands. She has published numerous reports and articles. She is an International Steering Group member of the International Campaign to Abolish Nuclear Weapons (ICAN), and a 2016 Nuclear Free Future Award Laureate. Previously, Mrs. Snyder served as the Secretary General of the Women's International League for Peace and Freedom (WILPF). – The Editor

UTRECHT, The Netherlands (IDN) - It’s nearly impossible to believe: nuclear weapons are banned. Outlawed. Making their way to where they belong, the dustbin of history. Since July 7 2017, that is a new reality. There is now a treaty that makes it illegal to make, have, get or use nuclear weapons. But what's the next step for the nuclear ban?

The treaty itself provides the first answer. It will open for signature on September 20 at the UN headquarters in New York. From then on the treaty will remain open for signature and States will begin the national processes to ratify. Three months after the fiftieth State has ratified, the treaty will enter into force and become binding on all those who have ratified it.

In principle, even before a treaty enters into force, it can have a normative effect. Think of the Comprehensive Nuclear-Test-Ban Treaty (CTBT); it's over 20 years since it first opened for signature and it hasn’t entered into force. Yet anytime any country plans a nuclear weapons test – or as in the case of North Korea – carries it out, the world reacts, condemns it, and imposes sanctions. Building that norm around what the nuclear ban treaty prohibits is the next step.

For decades, efforts to change the way we talk about nuclear weapons – to brand them as immoral and illegitimate – have been going on. Now, a new tool exists that codifies their illegitimacy, adds clout to the efforts to change the debate. Now, when we talk about nuclear weapons activities we can talk about them as prohibited by an international treaty.

In what ways can this new prohibition have an impact? How can the treaty be leveraged to eradicate nuclear weapons from the planet?

National legislation

States will be responsible for putting in place national legislation to ratify the treaty. Article 5 of the Treaty requires legal, administrative and other measures including penal sanctions to prevent and suppress activity prohibited by the treaty. In developing national implementation legislation, States have the possibility to further elaborate the provisions of the treaty, and incorporate components to develop and codify their understanding of the treaty, to build on its stigmatizing power. This could include prohibiting financing of nuclear weapon producing companies.

When designing national legislation the inclusion of a clear prohibition on financing nuclear weapon producing companies will provide clarity about how the financial sector should respond to the prohibition on assistance in Article 1 of the treaty. This signalling function is important to financial institutions. Many in the financial sector now use the Nuclear Non-Proliferation Treaty (NPT) as a reason to keep investing in companies that produce key components for nuclear weapons. They say that it’s okay for some countries to keep nuclear weapons, but that has all changed in the new reality.

Financial institutions provide crucial and necessary support to companies so that they are able to produce key components for nuclear weapons. Most nuclear-armed states rely on private companies for the production, maintenance and modernization of nuclear weapons. Publicly available documentation shows private companies are involved in the nuclear arsenals of, at least, France, India, Israel, the United Kingdom and the United States.

When financial institutions invest in companies associated with nuclear weapon production, they provide the financing that is needed for the projects that are currently making these weapons more likely to be used while increasing their killing capacity. This can be made illegal, and the new treaty ratification process offers the best opportunity to do so.

Previous experiences have shown that states are well placed to implement general financing prohibitions in their national contexts. For example, research by PAX shows that 10 states have already adopted national legislation prohibiting investments in cluster munitions[i], understood to be prohibited by the ‘assistance’ provision in the Convention on Cluster Munitions.

Some states have also already done so for the financing of nuclear weapons. In Australia and New Zealand it is a crime for a person or company to facilitate nuclear weapons manufacture anywhere in the world. In both countries, a company is also prohibited from providing services, including lending money, to another company if it can reasonably suspect that the services provided will contribute to a WMD (weapons of mass destruction) programme. In Switzerland, the Swiss War Materials Act prohibits direct investment in nuclear weapons producers. Liechtenstein implements the same legislation.

Implementing a prohibition on financing in the national ratification process as an elaboration of the assistance clause of the nuclear weapons prohibition treaty allows states to consolidate their obligations under other existing prohibitions and restrictions on financing, ranging from the UN Security Council Resolution1540 to the International Convention for the Suppression of the Financing of Terrorism. Best practices on national implementation could be shared at meetings of states parties and assistance with implementation measures could be asked for and provided, should States choose to do so.

No profit from illegal weapons

It is important to recognize that existing prohibitions on financing do not restrict purchasing other goods produced by companies that might also be involved in prohibited activities. The same should apply here. In practical terms, a prohibition on financing would apply to all types of investments and financing, including providing loans, investment banking services (such as underwriting bond or share issuances), and asset management activities such as shareholding.

A prohibition on financing does not require a boycott of nuclear weapon producing companies; it only prohibits investing in them. Financing and investing are done with the intention of making a profit. Investing in the producer of nuclear weapons is therefore not only a form of assistance for the production of these weapons, it also means profiting from an activity that is prohibited because of its inhumane consequences.

What next?

When thinking about what comes next for the Nuclear Prohibition Treaty, bringing it into force and encouraging good national ratification legislation is a distinct path forward. Along the way, it will be necessary to clearly identify and describe prohibited acts as illegal, and to elaborate the assistance provision to stop financial institutions from profiting from nuclear weapons production. The majority of the world’s governments have unquestioningly rejected nuclear weapons, and now we need to work to give that rejection more teeth. [IDN-InDepthNews – 17 July 2016]